Raise the bar for state secrets privilege

Suppose the US government is right now conducting a warrantless surveillance program that not only listens to international calls but to domestic calls, too – in clear violation of the law. Pretend that the press finds out but the administration refuses to acknowledge its existence. In that case, plaintiffs who went to court to argue its illegality wouldn't get very far.

Why not? The government would simply assert the state secrets privilege, which claims that litigation would disclose information damaging to national security. The courts – as they almost always do – would defer to that argument and dismiss the case. The government program would continue, legally unchecked.

That kind of result underscores why courts must not automatically buckle to the state secrets privilege. When the government asserts this privilege, it is merely that: an assertion.

Judge Anna Diggs Taylor rightfully recognized this in her ruling last month that the National Security Agency's (NSA) Terrorist Surveillance Program (TSP) – which monitors the international phone calls and Internet communications between American residents and suspected terrorists abroad – was unconstitutional. But the government also learned a valuable lesson: If it wants to win court cases of this kind, it will simply neither confirm nor deny the existence of surveillance programs.

That's no longer an option in this case, which now heads to the US Court of Appeals for the Sixth Circuit, in Cincinnati. The reason? The government actually acknowledged the NSA program. By doing so, Judge Taylor reasoned, the plaintiffs could adequately show standing – meaning, that they had been injured and could challenge the legality of the program.

Her decision swept broadly, holding that the TSP violated the separation of powers doctrine, the First and Fourth Amendments, and statutory law. She also rejected the administration's reliance on two key sources of authority: "inherent" presidential power and the statute enacted in September 2001 by Congress to support military action against Afghanistan.

Despite the government's protest, Taylor decided that the TSP was scarcely secret, given that the administration had admitted its existence and defended its value in keeping America safe. As she wrote: "The president indeed has publicly acknowledged that the types of calls Plaintiffs are making are the types of conversations that would be subject to the TSP."

How would Taylor have ruled if the administration had not acknowledged the program? Could the plaintiffs have gained standing? Probably not. If they failed to meet that threshold, Taylor could not have proceeded further to examine and decide the statutory and constitutional issues. As she noted: "Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants [the government], the President's actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny."

Her ruling may have been a setback for the Bush administration, but it underscored the strategy of silence that the government may adopt in future cases to block legal challenges to its surveillance programs.

That conclusion is bolstered by a district court ruling in the Studs Terkel case, issued on July 25. It involved a different surveillance program. In May, USA Today reported that the administration was collecting the records of phone calls (but not the contents of the conversations, as with the TSP). The administration never publicly admitted to the alleged program. Consequently, the judge granted its motion to dismiss on the basis of the state secrets privilege.

Because of that privilege, the plaintiffs were not able to obtain the information they needed to prove their standing and obtain judicial relief. Reliance on press reports was insufficient. Wrote the court: "By successfully invoking the state secrets privilege, the government has foreclosed discovery that would allow the plaintiffs to attempt to establish that they are suffering ongoing harm or will suffer harm in the future." The court invited the plaintiffs to look elsewhere for relief, such as using the legislative process.

Judges must independently scrutinize the assertion of state secrets privilege to determine whether it has substance or is, instead, a method to hide corrupt, illegal, and unconstitutional conduct by executive officials. The courts insist, rightly, that they are an independent branch. Treating claims of state secrets with "utmost deference" – as some judges have ruled – converts the judiciary into an arm of the executive branch.

• Louis Fisher is the author of "In the Name of National Security," which analyzes the state secrets case US v. Reynolds. He is a specialist in constitutional law at the Law Library of Congress. The views expressed here are his own.